Many government services, especially in terms of
police protection and the administration of justice, must to a large extent be
monopolistic; there is little room for competing police forces or competing
systems of justice within a jurisdiction. The government is sovereign,
establishing rules that all citizens or residents must adhere to, a role that
is rarely even approached by for-profit entities. The government employer is
expected to directly advance the interests of the public, an expectation that
simply does not apply to any individual for-profit company. Two of the most
important functions that any local government is expected to provide, police
and fire, are quasi-military in nature, requiring high degrees of physical
bravery and strict adherence to chains of command if they are to be executed
properly. At the same time, any disruption of these and other government
services could have catastrophic consequences for a community.

The process of
collective bargaining established by PERA changes the functioning of
representative government profoundly. Nearly every aspect of policymaking can
be affected, even dictated, by the terms of a collective bargaining agreement,
but the process of setting a governmental budget is the most straightforward
example.

With or without collective bargaining, governments do
not operate within a vacuum; they must offer competitive wage and benefit
packages if they are to recruit and retain qualified workers. But whether or
not one supports collective bargaining, there is no denying that it changes the
budget process. In the absence of collective bargaining, elected officials are
free to consult with their own financial advisors, develop a wage and benefits
package, and present this package to their employees. Government employees are
not powerless — they retain the option of looking for work in the private
sector or with other government employers — but at least elected officials
would be free to follow their own spending priorities and implement a budget
without interference.

Collective
bargaining changes the process considerably. Modifications to wages and
benefits must be negotiated with a union representative before they are
implemented. As a contract expires, elected officials cannot presume that they
can continue with existing arrangements. Even if the vast majority of the
workers are content with their wage and benefits packages, the contract must be
renegotiated, and union officials can be expected to present new demands whose
impact on the budget must be evaluated. Local governments are not required to
meet these demands, but an impasse in negotiations presents its own risks,
including unfair labor practice allegations that must be evaluated by the
Michigan Employment Relations Commission. Before reaching impasse, local
officials must be prepared to demonstrate that they bargained in good faith,
which goes beyond ordinary factual honesty. Under both the NLRA model and PERA,
"[C]ourts look to the overall conduct of a party to determine if it has
actively engaged in the bargaining process with an open mind and a sincere
desire to reach an agreement."[3] This can
be a difficult judgment for a court to make when a party takes a strong stance
on a contractual issue, and the understandable desire to avoid legal
difficulties can create an incentive for officials to accept compromises that
might otherwise be contrary to sound public policy. Elected officials cannot be
certain how a tough negotiating stance will be interpreted. In the case of
police officers and firefighters, a failure to reach an agreement will result
in the establishment of an arbitration panel, which will then decide terms of
employment.

Regardless of one's opinions on the merits of
collective bargaining, it is clear that it complicates the process of managing
municipal finances. Unless local officials are prepared for a bargaining
impasse, unions have an effective veto power over large swaths of a local
government or school board's budget, especially where employee compensation is
concerned. The sweep of the "union veto" is broad: Based on U.S. census figures
for 2005-2006, we estimate that wages and benefits for local government
employees in Michigan were equal to 45.6 percent of operations spending,
meaning that close to half of a typical local government's budget went to
compensation for employees.[4] This is, if
anything, a modest estimate of the impact that personnel costs have on
government. The Commonwealth Foundation has estimated that salaries and
benefits make up 70 percent of the cost of running a school district in
Pennsylvania, while the Heartland Institute estimates that more than 80 percent
of the city of Chicago's budget is related to personnel costs.[5]

Even more troubling, however, is the impact of work
rules. The work of government employees is the work of government itself, and
contractual clauses that affect the duties of government employees cannot help
but influence the way in which laws are enforced and public policies are
implemented. The federal and state constitutions are both predicated on
principles of democratic self-government, meaning that all aspects of
government are under the effective control of the people, who make policy
either directly through referenda or indirectly through elected officials.

Collective bargaining can and often does take
important aspects of government policy out of the hands of local elected officials
and instead makes those policies the subject of negotiations between the
elected representatives of the people and union officials who are not
accountable to the citizenry, further broadening the union veto.

To illustrate the problem, consider the following
provisions of the current collective bargaining agreement between the Detroit
Public Schools and the Detroit Federation of Teachers:

Since at least
2002, the contract has specified that all textbooks meet "guidelines
established by the District and outlined in the 1968 Textbook Report,
Publication 1-112, or its successor, prepared by School-Community Relations."
This requirement binds the school board to its existing curriculum policy. If
the board should decide to pursue a new approach in terms of curriculum,
perhaps to adopt innovative teaching methods or to revise content to reflect
new scholarship, it may find itself blocked by a union grievance that forces
the board to continue using standards it established in 1968.

The contract also has very specific requirements
for American and World History courses that could be used to block revisions of
the history curriculum. These provisions give the union considerable influence
in deciding what students are taught, a subject that properly belongs to the
discretion of the elected officials representing the people of Detroit.

The contract commits the District to "aggressively"
seek funds for integration and desegregation. Given Detroit's history, it is
understandable that these would be important issues for the school board, but
the board should be free to determine its own priorities in terms of lobbying
for state or federal funds.

The contract
states that schedules for adult education facilities will be made through a
"District-Union Committee" made up of an equal number of union and district
representatives and subject to approval by both union and district officials,
making the union the equal of the district in terms of setting the schedule.

The contract sets strict class-size limits and
further stipulates that class sizes at the beginning of a semester will be
substantially below those limits, so that "population shifts" will not result
in classes that exceed the student limits. The contract also sets up a "Class
Size Review Board," made up of equal numbers of union and district
representatives, with authority to resolve class-size complaints. Not only does
the contract set class sizes, it has the district share power with the union in
terms of how class-size requirements are met.

The contract limits the number of students assigned
to special education classes. State recommendations cannot be exceeded without
the union's permission; there is no indication that the bargainers who drew up
the contract considered the possibility that the district might at some point
have an unusually high number of students in need of these services. If a
student is in need of special education services, the district should be free
to arrange for him or her to receive them without consulting the union.

The contract sets the lengths of school days and
class periods in high schools.

The contract
establishes specific penalties and procedures for various forms of student
misconduct, and creates a "Uniform Code Review Committee" made up of equal
numbers of union and district representatives. Student discipline is a vital
aspect of educational policy; fairness to students and their parents is best
served when student infractions are investigated and penalties set by the body
that is accountable to the people of Detroit. While school boards should be
encouraged to consult with teachers on the setting of disciplinary standards,
final authority over student discipline ought to lie with the elected school
board. Under the contract, discipline has become another area of shared
authority between the board and the Detroit Federation of Teachers.

The contract
also sets many parameters for report cards, determining how often grades will
be passed out and what time periods the grades will reflect. The contract
specifies that primary school students will receive "non-graded" report cards.
It also sets forth the procedure for handling student appeals of grades, with the final determination made by "Grade Review
Panels" made up of union and district representatives. Certainly, teachers
should have a great deal of input in evaluating student work, and in general,
the grades they hand out should stand. Indeed, it is difficult to
imagine a system where they would not.

But as is the
case with curriculum and student discipline, fairness to students and parents
dictates that final authority in this area should be left with the elected
representatives of the people of Detroit. The process for evaluating student
work ultimately ought to be left to the determination of the school board.

Finally, the grievance procedure calls for final
resolution of all grievances by the American Arbitration Association. Because
the contract touches on many areas of education policy and does not attempt to
distinguish between matters of public policy and core matters of labor relations
— wages, hours, benefits and working conditions — the grievance process could
result in educational policy being resolved by the AAA, rather than the elected
Board of Education.[*]

By contrast, the
typical charter school board, operating without a union contract, has much
greater flexibility and control over academics, discipline and general
operations, consulting with teachers but retaining authority and accountability
to parents. (Michigan charter schools are subject to PERA, but the vast
majority remain nonunion by the teachers' choice.) To be fair, it should be
noted that the DPS contract is a rather egregious example generated by an
especially dysfunctional school district. Still, the Detroit Public Schools
contract illustrates that collective bargaining under PERA opens the door to
infringements on the authority of elected officials, and shows how one union
has taken advantage of PERA to assert control over matters of public policy.
The Detroit Public Schools are not alone in allowing this to happen, though; a
survey published by the Mackinac Center of public school collective bargaining
agreements showed that the overwhelming majority of school districts had agreed
to class-size limits as part of collective bargaining.[6]

Nor is this tendency of collective bargaining to
encroach on policy matters an entirely new development. In 1987, the Citizens
Research Council of Michigan observed that PERA had led to court decisions
allowing unions to encroach on local government prerogatives:

"... PERA is the predominant state statute
governing public employee relations in Michigan. When a conflict has arisen
between another state statute, charter provision, or local ordinance, and a
provision of a contract negotiated under PERA, in virtually every instance the
contract provision has been held to prevail.

One result of the dominance of PERA, as Attorney
General opinions have noted, is that 'public employers and their affected
employees [have] the right to, in effect, negotiate a statute out of existence
as to the contracting parties through collective bargaining.' [Citation
omitted.] This raises serious concerns because the provisions 'bargained out of
existence' by the parties may contain safeguards which were enacted at the
state or local level to limit the scope and size of government."[7]

Among the statutes that have been effectively trumped
by collective bargaining under PERA are:

The County Civil Service Act, which prior to the
enactment of PERA established local civil service commissions. These
commissions set wages and work classifications for local government employees
and were intended to ensure that hiring and promotions would be determined by
skill, rather than partisan pressures.[8]

The Municipal Employees Retirement System
established under state law.[9]

Local government charters. The state constitution
gives counties, cities and villages the authority to draft and amend their own
charters, subject to the limits of the state constitution and general state
laws. Under this principle of home rule, citizens would be free to shape their
own local governments and restrict their actions as they see fit. PERA,
however, has been interpreted so that collective bargaining agreements trump the provisions of local ordinances and charters.[10]
In this regard PERA arguably has subverted the state constitution.[†]

As a consequence
of PERA's undermining of home rule, local ordinances establishing disciplinary
standards, residency requirements and staffing standards have been rendered
ineffective. Courts have also applied PERA's standards to public school
employees, effectively trumping the provisions of education statutes.[11]

In a democratic government, the power to annul
legislation must be reserved for the people, their elected officials or, in
cases where either exceeds their authority, the courts. When legislative
authority is exercised by private entities, such as government employee unions,
the inevitable result is to undermine democratic self-government. This
situation is dangerous enough when the union focuses on traditional collective bargaining
issues, such as wages, benefits, hours and basic working conditions. But
government employee unions are developing a distinct public policy agenda that
ranges well beyond ordinary workplace issues, and PERA has given them their own
unique and powerful tools with which to advance that agenda, to the detriment
of the residents of Michigan.

In theory, the duty to bargain is limited to wages,
hours and other terms or conditions of employment, but that "other" category
remains broad and poorly defined. In practice, any political issue that can be
expressed in terms of employee compensation, job duties or work standards and
included in a collective bargaining agreement is vulnerable to manipulation by
government union negotiators. Since the work of government employees consists
of enforcing laws and implementing the decisions of government officials, the
range in which union officials can use PERA to usurp authority that the state
and federal constitutions leave to the people and their elected officials is
disturbingly broad.

[*] These provisions are found in the master
agreement between the Detroit Federation of Teachers and the Detroit City
School District that took effect July 1, 2002 and originally expired June 30,
2005. Unlike most government union
contracts, which are superseded by new contracts, this collective bargaining
agreement was amended and extended in 2005 and 2006, and it remains in effect
at this time.

[†] Michigan municipal law is a
complicated area beyond the scope of this study, but the obligation to bargain
undeniably places restrictions on local governments, and it does so in a manner
not addressed by the Michigan Constitution. The Legislature has considerable
authority to shape local government operations, including the provisions of
local government charters, but it is not clear that it should be able to
delegate that authority to private bodies, such as unions, or that it intended
to do so when PERA was enacted. It is the opinion of this author that such a
delegation has in fact happened, and that at a minimum this issue is ripe for
reconsideration by the state courts.